A report from the Independent of the break-down in talks between ISPs and music groups about responsibility for online copying, with lawsuits a possible result.

When we spoke with IP enforcers from Spain and Italy back a year or so ago, I was struck with the enthusiasm they showed for the idea that ISPs should be responsible for illicit copying by their customers.

The idea remains problematic. At one level, it makes sense to think of the ISP as a morally neutral channel that should on the whole not be entangled in questions of content control. Without this bright line rule many channels might not survive the massive threat of liability for everything from child porn to criminal plots to consumer protection to copyright infringement. BUT the bright line is a fiction; ISPs do inevitably get involved in content policing at some level and have the information and access to do more. Keeping them entirely neutral means the networks invite a flood of garbage.

The compromise that was worked out ages ago for the telephone companies was to let them act as neutrals until they were notified of a specific offense, whereupon the network would be obligated to disconnect the offender--a business that was discovered to be using its phones to run an illegal gambling operation, for example.

This will and will not work for ISPs. The phone company's responsibility turned on the reliable if cumbersome operation of traditional law enforcement--police and courts and so on. The slowness of this process and the safeguards built into it helped hold back the floodgates of liability and protect the phone company to a great extent. As applied to ISPs, the principle would create almost the same results as total immunity. As I've discussed elsewhere, the Internet and traditional enforcement mechanisms do not mesh well. The former easily overwhelms the latter. This is particularly true in the case of copyright. What follows is procedural shortcuts--notice and take-down provisions with the adversarial process largely cut out--which pose their own problems. Subjecting the ISPs to injunctions but not to damages solves the problem for the ISPs but tends to shift it to the customers--many of whom deserve it, but some of whom do not.

Bottom line: Still needs work. But it shouldn't be just the commercial content producing sector's problem. The question of uncovering enforcement mechanisms that work fairly with the massive volume of Internet transactions has application from everything from spam to fraud to copyright and contract violations is in everybody's interest.

posted by Solveig Singleton @ 11:17 AM | Internet: P2P, Search Engines...

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